This article discusses the expanding role of the professional counselor as expert witness. The preferred role of the expert witness is one in which the expert informatively presents the facts and does not act as an advocate trying to influence a legal decision. The expert witness in Michigan now has to consider changes in the Michigan Rules of Evidence which disallows any hearsay evidence the counselor may have acquired during counseling. Additionally, supporting documentation for opinions may not simply be cited, but must be placed into evidence. This article concludes with suggestions for counselors in preparing for the role as expert witness in the courts

Pietrofesa, Cathy J.

Pietrofesa, John David

Pietrofesa, John J.

Michigan Journal of Counseling Research Theory and Practice

English

Digital Commons@Wayne State University

Michigan Journal of Counseling:Research, Theory and PracticeVolume 31 | Issue 2 Article 310-1-2003The Counselor As Expert Witness: Changes in theMichigan Hearsay RuleJohn J. PietrofesaWayne State University, aa3222@weyne.eduCathy J. PietrofesaJohn David PietrofesaFollow this and additional works at: https://digitalcommons.wayne.edu/mijocThis Article is brought to you for free and open access by the Open Access Journals at DigitalCommons@WayneState. It has been accepted forinclusion in Michigan Journal of Counseling: Research, Theory and Practice by an authorized editor of DigitalCommons@WayneState.Recommended CitationPietrofesa, J. J., Pietrofesa, C. J., & Pietrofesa, J. D. (2003). The Counselor As Expert Witness: Changes in the Michigan Hearsay Rule,Dimensions of Counseling, 31(2), 13-16. doi:10.22237/mijoc/1064966520MCA  •  Dimensions in Counseling  •  31:2  •  October 2003          18workers, and psychiatrists as expert witnesses. Socialchanges have contributed considerably to this evolution.Due to the increase in issues such as violence, divorce,custody disputes, and substance use, mental healthprofessionals have been increasingly accepted in the roleof expert witness.There have been several recent examples in the courtswhere counselors were asked to provide expert opinions.The first situation involved a case in which the custodialparent wanted to move out of the state with her childrenso that she could be closer to her parents. The fatherobjected because this would impact his parenting time.The counselor was asked to provide an expert opinion asto the emotional and social impact this would have uponthe children. The second situation involved a family inThe Counselor As Expert Witness:Changes in the Michigan Hearsay RuleJohn J. Pietrofesa, Ed.D.Cathy J. Pietrofesa, Ph.D.John David Pietrofesa, J.D.John Pietrofesa is a Professor in Counselor Education at WayneState University. Cathy Pietrofesa is a Psychologist in practice inMichigan, and John David Pietrofesa is an Assistant Prosecutorin Michigan. Correspondence regarding this article can bedirected to John Pietrofesa, at Counselor Education, 321Education, Wayne State University, Detroit, Michigan 48202 orat aa3222@weyne.eduWThis article discusses the expanding role of theprofessional counselor as expert witness. The preferredrole of the expert witness is one in which the expertinformatively presents the facts and does not act as anadvocate trying to influence a legal decision. The expertwitness in Michigan now has to consider changes in theMichigan Rules of Evidence which disallows any hearsayevidence the counselor may have acquired duringcounseling. Additionally, supporting documentation foropinions may not simply be cited, but must be placed intoevidence. This article concludes with suggestions forcounselors in preparing for the role as expert witness inthe courts.hat was once an uneasy alliance between legal andmental health professionals has evolved into thefrequent use of counselors, psychologists, social319          MCA  •  Dimensions in Counseling  •  31:2  •  October 2003true facts as he/she sees them; the undesirable role is thatof a partisan seeking to undermine the opponent actingdeceptively to present his [sic] case more favorably andbehaving in a variety of unethical, inappropriate ways forreasons of greed, maladjustment, or personalaggrandizement” (Brodsky and Robey, 1972, p. 173).Expert witnesses, many of whom are counselors,participate in a plethora of legal cases. Their testimonieshave significant impact since as Faust and Ziskin (1988)say, “based upon an expert’s opinion, individuals may beconfined to hospitals, obtain or lose custody orguardianship, or be placed in penal institutions orrehabilitation facilities” (p.241). The need for fairness andimpartiality is clearly seen in how such testimony willaffect the lives of people. The generally acceptedstandards for clinicians as expert would include: (1) theexpert is able to offer opinions with reasonable clinicalcertainty, and (2) the testimony is offered to help a judgeor jury be better able to reach a more informed decisionthan in the absence of such testimony. Questions are stillraised about the accuracy of counseling and clinicaljudgments and if they indeed help judges and juriesarrive at more informed conclusions. As a result, themental health professional must take the greatest of carein arriving at judgments to be offered in the legal arena.The Michigan Hearsay Rule ChangeThe professional counselor is perhaps most likely to beasked to serve as an expert witness in cases that involvecustody, divorce, drug and alcohol use, child abuse,domestic abuse, pain and suffering as a result of anevidence. This rule does not restrict the discretion of thecourt to receive expert opinion testimony subject to thecondition that the factual bases of the opinion be admittedin evidence thereafter.With the change that became effective on September,2003, Rule 703 now reads as follows:The facts or data in the particular case upon whichan expert bases an opinion or inference shall be inevidence.This change essentially disallows as evidence hearsayinformation that the counselor may have received duringcounseling sessions. Additionally, mental healthprofessionals will have to place into evidence supportingdocumentation for any research cited and the basis uponwhich recommendations are made. An extremepossibility would be that the person who conductedreferenced research would be called to testify. The staffcomment (Michigan Supreme Court, 2003) on themodification of MRE 703 specifically states that this“corrects a common misreading of the rule by allowingan expert’s opinion only if that opinion is basedexclusively on evidence that has been introduced intoevidence in some other way than through the expert’shearsay testimony (p.2).” Although there are someexceptions to the new hearsay rule, it is important not tominimize the impact of this change in the MRE. Althoughopinions can still be rendered under this change, it willconsiderably curtail the role of all mental healthprofessionals as expert witnesses. Exceptions to thischange in the allowance of hearsay testimony mighthe role as expertwitness is notwithout itschallenges. Whatoften occurs in thecourts is anadvocacy process inwhich an expertwitness can beviewed as either foror against plaintiffor client.Taccident, sexual harassment and workerscompensation. Traditionally, the counseloras an expert witness has been able to testifynot only about facts in evidence, but alsoabout what others have said to them. Forexample, statements made by an adult orchild in a custody case have been admissibleas evidence.On March 25, 2003, the Michigan SupremeCourt changed what is to be allowed intoevidence, effective as of September 1, 2003.The Michigan Rules of Evidence (MRE) andspecifically Rule 703 previously read asfollows:The facts or data in the particular caseupon which an expert bases an opinion ofinference may be those perceived by ormade known to the expert at or before thehearing shall be in evidence. The court mayrequire that underlying facts or dataessential to an opinion or inference be inwhich an adolescent made a falseaccusation of sexual touching against astep-parent. The court requested thefamily to undergo individual and familyassessments followed by a hearing inwhich the counselor would offeropinions that would help the court in itsrulings. The third situation involved acustodial dispute about parenting time forthree children. The counselor was asked toprovide an expert opinion as to what was inthe children’s best interests given theadversarial nature of the parents’relationship.The role as expert witness is not without itschallenges. What often occurs in the courtsis an advocacy process in which an expertwitness can be viewed as either for oragainst plaintiff or client. Yet, while the idealrole of the expert witness is one of “adetached, thoroughly neutral individualwho simply and informatively presents the4MCA  •  Dimensions in Counseling  •  31:2  •  October 2003          20will want to review and be familiar with the client’sformer psychological care and treatment including anunderstanding of previously prescribed medications.If tests were administered, the counselor will want toexplain the relevance of the protocol and the reasons thatother tests, especially if they were used by the opposingexperts, were not. The counselor should be prepared toprovide some detail about how the tests can detectmalingering or deception on the part of the client duringthe testing and should also be willing to admit to theweaknesses of the tests. It is important to remember thatany test, particularly if questions are taken out of context,may be challenged during cross-examination and theexpert should therefore be prepared to non-defensivelyexplain the validity and reliability of tests used.The factors that led to diagnosis and course of treatmentshould be explained firmly. In offering a DSM IVtreatment diagnosis, the counselor should also beprepared to address differential diagnosis issues and whythey were ruled out. Although there is a clear explanationof the diagnosis and treatment, some time should also bespent on the possibility of recovery or change.ConclusionIt is important to recognize the expanding role ofcounselors that now includes potentially being called asan expert witness. The Michigan Supreme Court hasissued an order that testimony by experts cannot be basedis more important for the expert witness than a firm graspof psychological dynamics and counseling fundamentals,it is important to have legal and forensic training.With these changes regarding the rules of evidence,counselors as expert witnesses may want to considerseveral suggestions for their role in court. Fundamentally,the counselor should carefully review the case file and befamiliar with the client’s previous statements andbehaviors. If a video is available of any client interviewswith attorneys, watch them carefully and observebehavior and manner of speech. A copy of the opposingexpert’s report and credentials might also be obtained toprepare the presentation. Clinical records may besubpoenaed. They should be reviewed carefully, butobviously may not be changed as falsification of healthrecords is both unethical and illegal.The counselor will want to consult with the attorneybefore testifying. There should be some priorunderstanding of what to expect during directexamination, what aspects should be highlighted andwhere potential problems may be. It is important to knowwhat legal issues are in dispute and what to anticipatefrom the opposing attorney. At this time, the counselor asexpert witness can point out to the “non-expert” attorneyother issues of which the attorney may not be aware.During testimony the counselor should have available allreports and other information upon which his or hertestimony is based. Although some anxiety is to beraditionally, thecounselor as anexpert witness hasbeen able to testifynot only about factsin evidence, but alsoabout what othershave said to them.For example,statements made byan adult or child in acustody case havebeen admissible asevidence.Tinclude a Friend of the Court reportthat includes evaluations by outsidepersons or agencies or a briefsubmitted to the Friend of the Court.Preliminary mental health hearingsconducted by a probate judge whichincluded hearsay testimony might also beallowable under the new Rules of Evidence.Preparation for the Role of the ExpertWitnessThe role of expert witness will bring newchallenges for a counselor and the need foradditional training. Huber and Baruth(1987) note that, “The legally naïve therapistwill likely experience frustration andembarrassment at the hands of a skilled andwell-prepared attorney within theadversarial system of the court (p.125)”.Specifically, the counselor would want to beknowledgeable in the rules of evidence thatare used in the courtroom. Prior training inproviding courtroom testimony is essentialto the expert’s effectiveness. While nothingexpected, it is helpful for the counselor tomaintain eye contact with the jury. It isimportant to be responsive, but not appearto be playing for the jurors’ benefit. Theexpert should not talk “down” to the “non-expert” attorneys because the judge andjurors are in the same situation.Psychological terms can be used, but theyshould also be explained and/or used withspecific, well-known examples. It isimportant to answer the specific questionasked but not to expand or volunteerinformation. Upon cross-examination, theexpert will want to maintain appropriatedemeanor and continue to provide fair andimpartial responses without becomingdefensive or argumentative. It is essentialnot to change the facts of the case duringcross-examination. If the facts change, theconclusions drawn will also change.The expert witness will want to be presentduring the testimony of the opposingexpert. Facts offered by the other expert(s)may be supportive. Similarly, the counselor1521          MCA  •  Dimensions in Counseling  •  31:2  •  October 2003upon hearsay with limited exceptions. This alteration inthe Rules of Evidence will have considerable impact onwhat expert witnesses might be able to testify to in courts.This will have the greatest impact upon counselors whomight testify in Family Court and who can no longertestify about what was said to them during counselingsessions.ReferencesBrodsky, S.L. & Robey, A. (1972). On Becoming an Expert Witness: Issuesof Orientation and Effectiveness. Professional Psychology, 3, 173-176.Corey, G. and Corey, M.S. (1998). Issues and Ethics in the HelpingProfessions. Pacific Grove, CA: Brooks/Cole.Faust, D. & Ziskin, J. (1988). The Expert Witness in Psychology andPsychiatry. Science, 241, 31-35.Huber, C.H. & Baruth, L.G. (1987). Ethical, Legal, and Professional Issues inthe Practice of Marriage and Family therapy. Columbus, OH: Merrill.Michigan Supreme Court. (2003) Amendment of Rules 703 and 1101 ofthe Michigan Rules of Evidence. Order Entered March 25, 2003.Lansing, MI: State of Michigan.State of Michigan. (2003) Michigan Compiled Laws Annotated. Lansing:State of Michigan.16

The Counselor As Expert Witness: Changes in the Michigan Hearsay Rule

John J. Pietrofesa

Cathy J. Pietrofesa

John David Pietrofesa

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The Counselor As Expert Witness: Changes in the Michigan Hearsay Rule

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